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Seeking Rape Justice: Formal and informal responses to sexual violence through technosocial counterpublics

Theoretical Criminology. Accepted 12 February, 2015. Abstract Communications technologies are being used in varying ways to perpetrate and extend the harm of sexual violence and harassment against women and girls. Yet little scholarship has explored the uses of communications technologies, to support reporting, investigation and prosecution of sexual assault, nor indeed less formal mechanisms of justice. In this article, I contend that communications technologies are not simply new tools for conventional formal justice, but rather that these technologies are mediating new mechanisms of informal justice outside of the State, in turn challenging meanings of justice in Western liberal democracies. In so doing I employ concepts of technosocial practices operating in counterpublic online spaces, to explore the potential (and limits) of communications technologies as mediators of rape justice. Keywords: Rape, Technosociality, Justice, Feminism. Corresponding Author: Dr Anastasia Powell Senior Lecturer, Justice & Legal Studies RMIT University Building 37, Level 4 411 Swanston Street Melbourne. VIC. 3000 Phone: (03) 9925 3566 Email: anastasia.powell@rmit.edu.au Author biography: Dr Anastasia Powell is Senior Lecturer in Justice and Legal Studies at RMIT University. Anastasia’s research has specialised on policy and prevention of sexual violence, and includes her book: Sex, Power and Consent: Youth culture and the unwritten rules (Cambridge University Press, 2010). Acknowledgements: A version of this article was first presented at the 2013 Australian and New Zealand Society of Criminology Conference, and the author wishes to thank her colleagues who provided comment at that time. This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.

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Seeking Rape Justice: Formal and informal responses to sexual

violence through technosocial counterpublics

Introduction On a Saturday night in August 2013 two young men sexually assaulted a 16 year old

young woman. Trent Mays and Ma’lik Richmond, both also 16 and players on the high

school football team, would later be charged and found guilty of rape. Mays would also

be charged and found guilty of dissemination of child pornography in relation to images

that were taken and distributed of the sexual assault (Oppel, 2013). According to court

reports, Mays sent picture and text messages from his iPhone, including one of the young

woman naked and unconscious with what appears to be semen on her chest (Ohio Court

of Common Pleas, 2012). Several witnesses had taken images that they subsequently

shared with others via mobile phone, email and social media. In one photograph

Richmond and Mays are seen carrying the clearly unconscious young woman by her

wrists and her ankles.

That night in Steubenville, Ohio (United States), was not the first time, and nor would it

be the last, that images of rape were widely distributed online and via social media. The

perpetrators, witnesses and their peers, shared the images along with commentary that

minimized the rape and blamed the victim. Next came the rape bullies. Initially other

students who heard of the rape and posted vicious tweets about the victim, including:

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‘Whores are hilarious’, ‘If they’re getting “raped” and don’t resist then to me it’s not

rape’, and ‘Song of the night is definitely Rape Me by Nirvana’ (Twitter.com), as well as

expressions of empathy with the perpetrators and concern for what the legal process

might mean for their futures. Yet what was significant about this particular case was that,

according to media reports, it was the distribution of these images that prompted police to

investigate the social media material being publicly distributed, to call in witnesses for

interviews, and to seize mobile phones that revealed further evidence of the rape (see

Levy, 2013). Formal mechanisms of justice were being assisted through the evidence

recorded on smartphones and shared on social media in a case where, due to the victims’

unconscious state and inability to recall precise details of the rape, a conviction for rape

would have otherwise been unlikely.

A year later images of the rape of another 16 year old young woman were circulated via

social media, this time to a different effect. Rather than the images facilitating formal

justice1 the young woman’s experience would become the subject of an internet meme,

which invited a global community to mock the rape by posting photographs of

themselves mimicking the original images of the half naked woman after the assault,

along with the hashtag #JadaPose (see Bates, 2014). Again, it was neither the first time

nor the last that a victim-survivor of rape would become the subject of online bullying,

harassment and gender-based hate speech in relation to a sexual assault. Though what

stands out about this particular case is what happened next. The victim-survivor Jada 1 Though at the time of writing, a police investigation was underway.

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responded to the online abuse with her own hashtag activism; posting a photograph of

herself striking a pose of defiance and strength – her arm curled like Rosie the Riveter –

along with the hashtag #IamJada (Twitter.com). Thousands of supporters rallied online in

solidarity with Jada’s counter-campaign which trended on Twitter under the hashtags

#IamJada, #StandwithJada and #JadaCounterPose (Twitter.com). Jada had given voice to

her experience, reclaimed an identity of strength rather than victimization, and drew the

support of a global online community condemning sexual violence against women and

girls.

This article explores various ways in which communication technologies are mediating

new social practices of informal justice in response to rape. By communications

technology I am referring primarily to mobile and smartphones, tablets, computers and

internet-enabled devices, including those capable of generating text, image and video

content which can in turn be shared with others whether via text and multimedia

messaging, email, or publishing to the Internet. The publication of user-generated content

in particular is a key feature of what is variously termed the new media or Web 2.0,

including text, images and video content, and across longer blog formats (such as

Tumblr, WordPress or Blogger), social networking profiles (such as Facebook or

Google+), video and image-sharing platforms (such as YouTube, Instagram, or Flickr),

and micro-blogging social media (such as Twitter). The new media is equally typified by

its ‘many-to-many’ and ‘two-way’ networks of interaction as opposed to the ‘few-to-

many’ and one-way or hierarchical generation of content that defines traditional or ‘old

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media’ (Castells, 1996; see also Miller 2011; Yar 2012a).

By ‘justice’ I mean not only formal criminal justice responses by institutions of the State

(such as police and in the courts), but also informal justice sought in public and counter-

public online spaces and communities in civil society. While feminist criminology has

tended to associate justice in response to rape, or ‘rape justice’, with securing convictions

and with carceral punishment of offenders some feminist scholars are seriously

questioning this approach (e.g. Daly, 2013; Larcombe, 2011; McGlynn, 2011). Not least

because conviction rates for sexual offenses are so low, and decades of feminist-inspired

law reform in Western democracies have done little to change this. In other words, when

conceived of solely as punitive state-sanctioned outcomes, ‘justice’ continues to elude the

vast majority of rape victim-survivors. Moreover advocating for greater punitiveness for

violence against women has positioned feminism in an uneasy alliance with conservative

law and order politics (McGlynn, 2011; Murray and Powell, 2011) in which feminist

demands for justice have arguably been co-opted by neo-liberal governments’ (Gotell,

2011). As such some feminist criminologists and legal scholars, such as Clare McGlynn

(2011) and Kathleen Daly (2013), suggest a more victim-centered approach is needed in

conceptualisations of justice including restorative justice approaches and, perhaps

radically, forms of community or informal justice outside of the state.

It is in the context of these much larger debates that I suggest that communications

technologies are not simply new tools for conventional crimes or in this case

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conventional or formal justice, but rather that these technologies are mediating new social

practices of informal justice which in turn challenge meanings of justice within

criminology and the global West more broadly. As such, I am driven by the following

questions: How is technology being used in ways that can facilitate rape justice both

within and outside the State? What complexities and challenges do communications and

new media technologies present for achieving rape justice? What’s ‘new’ about these

social practices of informal justice and how might our existing criminological theories of

justice need to adapt?

Rape exposed: Communication technologies in the aftermath of sexual violence

Perhaps the foremost example of the ways communications technologies and new media

have facilitated justice in response to rape, is where the perpetrator or perpetrators, have

themselves documented aspects of the assault whether through still or video images,

texts, emails, or online posts to social media. In Australia, in October 2006, the news

media was filled with reports of a sexual assault three months earlier of a 17-year-old girl

by 12 young men, who had recorded and since continued to distribute images of the

assault. The ‘Werribee DVD’ was initially sold in local high schools for $5 and later

emerged for sale on internet sites for up to $60 with excerpts also made freely available

on YouTube™ (Cunningham, 2006). It was not however, an isolated incident. Six

months later, Sydney newspapers reported a sexual assault of a 17-year-old young

woman involving five teenage young men who filmed the assault on their mobile phones

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and distributed the image among fellow school students (Braithwaite & Cubby, 2007). In

2009, an Australian Navy cadet was found guilty of rape after filming himself giving the

thumbs-up to the camera during an assault against a female colleague (The Age, 2011).

In 2012, a group of six men in Bendigo faced charges of rape having also taken video

footage via mobile phones during the assault (Snashall-Woodhams, 2012).

Internationally, the news media is likewise replete with reports of similar cases. In one

recent case in the United Kingdom, a man who was picked up by police for unrelated

offences, was charged with rape after police discovered a video recording of the sexual

assault on his tablet device (Rankin, 2013). In another, a woman from the United States

Navy Academy who had passed out drunk at an off-campus party, learned that she had

been raped by three men after friends’ alerted her to the men’s posts on social media

(Chidi, 2013). Finally, in a case that appears to parallel that in Steubenville (Ohio, US),

four Vanderbuilt University footballers have been charged after allegedly gang-raping an

unconscious young woman in a campus dormitory. According to media reports, the men

took photos and videos of the assault and sent them onto three other men – who have

been charged with ‘tampering with electronic evidence’ for allegedly deleting the photos

rather than cooperating with the police investigation (Culp-Ressler, 2013). The trial is

due to commence in January 2015 (Barchenger, 2014).

In some cases, the offender appears to have recorded the assault for his own personal use.

These are not unlike the more conventional ‘trophy videos’ kept on VHS, such as by the

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notorious Australian serial rapist John Xydias, who was found guilty in 2009 of drugging

and raping 11 women; the video footage he made was used in court as evidence that the

women were unconscious and could not have consented (Hagan, 2009). In a similar case

in the United States a 30 year old man, James Bledsoe, was convicted for the rapes of

four women, which he had secretly video recorded; the recordings demonstrating the

victims’ non-consent (Los Angeles Times, 2011). However, increasingly, as can be

identified from media and court reports, some perpetrators of sexual violence are sharing

such imagery with their peers, particularly through social media such as Twitter,

Facebook and Instagram, as well as on websites and forums such as Reddit and 4Chan or

sites dedicated to sharing user-generated explicit content. In other cases witnesses present

at the assault, and who could have intervened or reported the incident, instead laugh

along with the primary perpetrators taking photographs and videos that they too post on

social media to continue the ‘joke’.

This practice of perpetrators’ and their peers recording and distributing images of sexual

assaults represents a double-edged sword for victim-survivors. On the one hand, such

imagery can facilitate a just outcome by the State by presenting evidence not only that the

rape occurred (the imagery may demonstrate the victims’ non-consent), but also evidence

of the perpetrators’ state of mind. There can be no question of an accused not knowing

that there was not consent (the mens rea element of which many rape cases fail to

convince a jury, see Larcombe 2011, 2012), if a photograph shows the perpetrator

penetrating a clearly unconscious victim, or he was found to be boasting about the rape to

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his mates on Twitter, Facebook or Instagram. Nonetheless, the sharing of such imagery

online by perpetrators, witnesses and peers extends the harm of the original crime. The

impact on a victim-survivor of discovering that images have been distributed and/or

becoming the target public shaming, harassment and online abuse following the rape can

be, not only humiliating and a recurring source of trauma, but also tragically severe with

some cases having resulted in victims’ taking their own life.2

That perpetrators’ are recording and distributing images constituting evidence of, and in

some cases admission to, their crime itself warrants further explanation. It seems counter

to logic for perpetrators of crimes generally to first document evidence of their offence,

and then to make it publicly available knowledge. Arguably this is particularly so for

sexual offences; not least due to the possibly of being apprehended by police, but also

due to the potential social consequences of outing oneself as ‘sexually deviant’. Though,

as others have suggested, sexual offences occupy a contradictory space within public

discourse; while some perpetrators are vilified as ‘monsters’ of heinous crimes, all too

often the extent and impact of sex offending is minimized while victims are routinely

treated with suspicion and invalidation (see Daly, 2014; Salter, 2013; Waterhouse-

Watson, 2013). 2 Such was the case of Rehtaeh Parsons, a 17-year old from Nova Scotia (Canada) who died as a result of suicide after she was raped by four young men from her school, who later distributed images of the rape. Peers in her school community and beyond engaged in subsequent online harassment and bullying of Rehteah, continuing for two years after the rape, and which her mother later stated led to her death (see http://www.cbc.ca/news/canada/nova-scotia/rape-bullying-led-to-n-s-teen-s-death-says-mom-1.1370780 )

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In previous work I have argued that we ought to understand the trend in recording and

distributing rape images not as a function of the availability of the technology or of youth

attempts to gain status online, but rather as an extension of gender-based violence (see

Henry and Powell, 2014; Powell, 2010; Powell, 2009). In an ‘old crimes, new tools’

fashion I identified the problem as underscored by a society in which women remain

unequal, their sexual autonomy undervalued, and violence against them is condoned.

Feminist scholars have long debated the existence of a “rape culture” in which sexual

violence against women is implicitly and explicitly condoned, excused, tolerated and

normalised (Brownmiller 1976; Buchwald, Fletcher & Roth 1993; Burt 1980; Clark &

Lewis 1977). It is difficult to imagine rapists’ taking and distributing images of their

assault, boasting online to their peers, and to a wider public audience, if there were not a

culture of societal tolerance even acceptance of rape. Moreover, perpetrators’ of rape

have long used various strategies to intimidate, harass and humiliate their victims, and

arguably to prolong the experience of power and entitlement; recording and distributing

images of the rape may just be an extension of these practices.

Yet, criminologist Majid Yar (2012) makes a persuasive case for considering the impact

of communications technologies and new media as, at least in part, a motivator of

criminality. In discussing the practice of ‘happy slapping’,3 Yar argues that “crucial to

3 ‘Happy Slapping’ refers to physical attacks upon an unsuspecting victim, which are video recorded and often subsequently distributed among peers and/or online (see Saunders, 2005)

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understanding this phenomenon is the role played by participants’ desire to be seen, and

esteemed or celebrated, by others for their criminal activities” (2012:252). He draws on

the Australian Werribee DVD case, as an example where the perpetrators recorded,

edited and distributed video imagery of their crime to sell on DVD complete with an ‘R’

rating and credits listing the ‘actors’ involved on the cover (2012:253). Thus Yar

suggests the recording was not an accidental circumstance of the offence, but rather a key

driver of it. He argues that this ‘will-to-represent’ ones transgressive self is linked to

broader trends both of a self-creating subjectivity associated with processes of de-

traditionalisation (e.g. Beck and Beck-Gernsheim, 2002; Giddens, 1991), and the ready

availability of new media platforms for such self-creation (Yar, 2012:251). There are

arguably links between this will-to-representation and the pervasiveness of rape culture,

that can begin to explain why particular sexual offenders would be driven to record and

share their crimes, despite the recordings being potentially used as evidence against them.

It is not, however, only perpetrators who are using communications technology to

document evidence of rape. There are several cases recently reported in the media where

victims themselves have gone to police with evidence of an offence recorded via a digital

camera or their mobile phone. For example, in a 2010 case in Germany, a 12-year-old girl

secretly filmed her step-father who had raped her repeatedly using a hidden camera in her

bedroom (The Local, 2010). In another case, in the UK a man was convicted and jailed

for ten years after his victim, having recorded the rape on her mobile phone, was able to

produce evidence of her non-consent to counter his claim that she had just been ‘playing

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hard to get’ (Sunderland Echo, 2012). Finally, in two further and separate cases in the

UK two men have been jailed for child sexual abuse, after their now adult victims

recorded a confrontation via mobile phone and in which the men admitted to the past

assaults (Carter, 2013; Duel, 2013). In one of these cases, the woman had confronted her

rapist after police had told her that they would not be investigating her claim of sexual

abuse as a child, since there was no evidence that could be used in court.

Perhaps it is the widely documented and routine failure of traditional criminal justice to

secure convictions in relation to rape that has driven some victim-survivors to document

the crimes for themselves. With ‘she consented’ or ‘I thought she consented’ being the

most common defences to rape, such digital evidence is potentially game-changing. It is

well established in the scholarly literature, that a majority of sexual assault cases involve

circumstances where there is no forensic or third party evidence of the assault and the

case thus rests on a jury believing the victim’s testimony over the alleged perpetrator’s

beyond reasonable doubt. Digital evidence recorded by the victim and produced in court

could be a powerful tool for police and state prosecutors as well as facilitating a just

outcome for victim-survivors.

Of course, many victims of sexual assault do not report the crime to police for a range of

reasons including; uncertainty that their report will be taken seriously, ambivalence

towards the perpetrator (particularly as the vast majority are known to the victim), and

feelings of fear, shame or humiliation (see for example Du Mont et al, 2003; Weiss,

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2011). Communications technology is being harnessed here too, by facilitating

anonymous reporting of sexual assault electronically via mobile phone applications (or

‘apps’) and through websites. In Australia, the South Eastern Centre Against Sexual

Assault (or SECASA) in Melbourne received a government grant of $20,000 to develop a

Sexual Assault Anonymous Reporting app – S.A.R.A for short – launched in March 2013

(Donelly, 2013). The app allows victims of sexual violence, whether it is a current or

recent sexual assault, harassment, or past assault, to enter details of the violence into the

app such as; the offenders’ characteristics, when and where it occurred, the type of

assault, and even an image or short video taken of the scene. A similar smartphone app

has also been launched in the United States – ASK DC (Rich, 2013). The data is

compiled and analyzed to identify localized trends and sexual assault ‘hotspots’ that may

assist police in directing their patrol resources or indeed in investigations. The potential

benefits of anonymous reporting apps such as SARA or ASK DC, extend beyond the

offending patterns data that may be made available to assist police. The app also provides

advice to victim-survivors, and with their agreement, connects them to local support

services with the touch of a button. Sexual assault services such as SECASA hope that

providing victims with a positive experience of reporting sexual assault anonymously

online, of being heard and having their experience counted, may assist victims in their

recovery and even encourage them to report an incident formally to police in the future

(Jalote, 2013). In other words, rather than existing in opposition or as discrete categories,

there is arguably a continuum between formal and informal justice mechanisms for rape.

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Finally, and of most significance to my argument here, communications technologies

provide ready mechanisms for activist projects and individual victim-survivors to pursue

their own informal justice in response to rape. For example, in 2012 in a widely

publicized case, 16-year-old Savannah Dietrich tweeted the name of two teenage boys

who had sexually assaulted her, recording and distributing photos of the assault. The boys

pled guilty to a sexual abuse and misdemeanor voyeurism charge and were sentenced to

just 50 days community work with their convictions to be quashed before they turned 20.

As the perpetrators were juveniles, their names and the details of the case had been

suppressed, and as such Savannah faced a possible $500 fine and 180 days in prison for

outing her attackers.4 Yet, her action in naming and shaming her rapists was a direct

response to the injustice she felt as a result of the criminal justice process (see also Salter,

2013).

While women outing their rapist as a form of activism is not new, communications

technologies have enabled more women to speak about and share their experiences of

sexual violence victimization with a much wider audience. ‘Ugly Mug’ schemes, where

sex worker advocacy groups collate anonymous reports of harassment and sexual assaults

by clients, have long been in operation in the UK, US, Australia, Ireland, Sweden,

Norway and Canada – now there’s an app for that too, where sex workers can report

‘ugly mugs’ via their smartphone or tablet device. The app also automatically screens

4 Savanagh Dietrich’s case was widely reported in the global media, see for example http://www.huffingtonpost.com/2012/08/29/savannah-dietrich-court-records_n_1840557.html

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incoming and outgoing calls and text messages, and alerts the worker if they have had

contact with a phone number that is in the Ugly Mugs database.5 In other well-known

examples, rape victim-survivors have named their rapists on YouTube (such as Brie

Lybrand who named her father in 2012),6 on the blogging website Tumblr (such as

Tucker Reed who named her university boyfriend in 2013),7 on Facebook (such as Chloe

Rubenstein who named the men involved in campus sexual assaults in 2010),8 and on

Twitter (such as Savannah Dietrich in 2012). Finally, over two thousand photographs of

sexual assault survivors holding posters with quotes from their attackers are featured on

the Tumblr website Project Unbreakable.9 The project, which does not overtly name or

identify anyone, seeks to raise awareness of sexual assault while providing an opportunity

for victim-survivors to share their experiences with the world.

Naming their attacker or voicing their experience of victimization may go some way to

empowering victim-survivors and facilitating a sense of justice, albeit informal or outside

of the State. Yet, in Steubenville it was not the victim herself but a blogger and

hacktivists who took justice into their own hands by publicly re-posting screenshots from

5 The app is available for download on the Google Play Store: https://play.google.com/store/apps/details?id=com.safeiq.uglymugs 6 See http://www.huffingtonpost.com/2012/11/06/brie-lybrand-new-orleans-beauty-guru-raped-youtube-video-father_n_2082756.html 7 See http://nation.time.com/2013/08/08/campus-rape-victims-find-a-voice/ and http://coveredinbandaids.tumblr.com/ and http://www.xojane.com/issues/tucker-reed-outs-rapist-at-usc 8 See http://www.washingtoncitypaper.com/blogs/sexist/2010/05/06/de-friendly-fire-american-university-student-makes-facebook-rape-accusation/ 9 See http://project-unbreakable.org/

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social media as well as photographic and video evidence, drawing widespread attention to

the case online and subsequently in the mainstream media (Levy, 2013). Reportedly

frustrated by the slow progress of formal justice and suspicious of perceived inaction by

local police and county prosecutors (some of whom were known to have personal

connections to the accused players’ families) Alexandria Goddard blogged about the

case, including screen shots of anonymised tweets and photographs, on Prinniefield.com

(Goddard, 2013). Then on January 2, 2013 members of the ‘Anonymous’ collective

claimed to have hacked into the high school servers and students’ e-mail accounts

retrieving photographic evidence of the rape as well as personal data of the students’

allegedly involved, threatening to release the personal data if they did not come forward

to police.10 In another video the computer-synthesized voice of a hooded figure in a Guy

Fawkes mask read out students’ names – those who were suspected of having been either

directly or indirectly involved – along with a slideshow of screenshots from Twitter and a

photograph of the unconscious victim from Instagram. The videos went viral, re-shared

multiple times, and with over two million total views. To what extent such activism, or

indeed Internet vigilantism, placed pressure on authorities and ultimately contributed to a

conviction is unclear. However what is of interest to the argument presented here is

whether such community-driven action might signal a new justice environment,

facilitated by communications technology, in which informal justice will increasingly

intersect with or even in some cases replace formal criminal justice processes (Powell,

2014). 10 See https://www.youtube.com/watch?v=m8kKou9a89w

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Of course, the distribution of rape imagery and citizen-led or informal justice

mechanisms are not unproblematic and they present particular challenges both for formal

justice responses and victim-survivors. There are serious due process concerns (such as

violations of the right to the presumption of innocence as well as a fair and impartial trial)

where alleged offenders’ are named and shamed through informal justice mechanisms.

Furthermore, in some instances formal legal responses including suppression orders or

defamation law suits, may fail due to the relative ‘ungovernability’ of the Internet; where

cross-jurisdictional issues, online anonymity and the sheer volume of material can all

create barriers to protecting the civil liberties of accused persons’.

Governance and due process concerns are not the only negative fallout possible from

these new informal justice mechanisms. There are also substantial negative impacts on

victim-survivors of rape in this new technology-mediated justice environment. High

profile cases of rape victim suicides following abuse on social media (such as Rehtaeh

Parsons11 and Audrie Pott12) are tragic examples of the extent of the additional harm and

trauma experienced by victims when the evidence of an assault never goes away – and

when the response online via social media and the public sphere is all too often negative

and victim-blaming.

11 See http://www.independent.co.uk/news/world/americas/facebook-apologises-over-dating-ad-showing-picture-of-rehtaeh-parsons-after-she-killed-herself-8824232.html 12 See http://www.smh.com.au/world/audrie-pott-attack-girl-blamed-for-encouraging-boys-to-assault-15yearold-at-party-20130729-2qti7.html

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Further challenges from the perspective of victim-survivors are the contradictory ways in

which social media evidence may be drawn on to support a case in court. For example,

legal scholars have suggested that social media is altering the legal landscape with

lawyers from all areas routinely “digging for digital dirt” (Browning, 2011: 467). Indeed,

as Parker and Swearingen suggest “it is now common practice for trial lawyers to conduct

online research on their own clients, opposing parties, third-party witnesses, experts, and

even jurors” (2012: 34) and “with increasing frequency, courts are finding that what you

do and say on Facebook can and will be held against you in a court of law” (2012: 35).

While such social media evidence may be used to facilitate formal justice in response to

rape by demonstrating the victims’ non-consent or incapacitated state as well as the

perpetrators’ state of mind, there is also potential for victims’ own social media activity

to be mis-used in efforts to discredit her in court. For instance, should a victim post about

a holiday or a night out with friends after an alleged assault, or publish photographs and

commentary that do not otherwise conform to community views of the traumatised

mentality of a ‘rape victim’, this may be mis-used as counter-evidence of the rape. There

is emerging research into the ways in which rape trials become derailed on the basis of

jury attitudes and normative assumptions about the nature of rape and expected reactions

of victim-survivors (see Ellison and Munro, 2009, 2010). These are challenging issues

that we are yet to fully comprehend and address.

Crucial to the focus of this article however, is that the informal justice in the examples

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referred to here, raise questions about the meaning of justice for victim-survivors of rape

in a context where conventional justice has routinely failed them. It is to this core concern

of what’s ‘new’ about these practices and how our existing conceptualisations of justice

might need to adapt, that I now turn.

Theorizing informal justice through a technosocial feminist lens

Feminist theorizing of technology has, over several decades, contributed complex

analyses of both the emancipatory potential of communications technologies, as well as

the problematic reproduction of gendered power relations in online spaces. For example,

‘cyber’ or ‘techno’ feminists of the 1990s and today have expressed optimism about the

capacity for communications technologies, such as the virtuality of online spaces, to

fundamentally transform gendered power relations by decentering the body and thus

blurring the boundaries of male and female identities (see Haraway 1985; Turkle, 1995).

Building on related work by Manuel Castells (1996; 2007) emphasizing the networked

rather than hierarchical relationality modelled by communications technologies, others

have highlighted the increased participation of women and the proliferation of counter-

discourses made possible by the ‘new media’ (see Fraser, 2014; Mackay, 2011; Harris,

2008).

Yet technofeminist theorists have simultaneously recognized that the emancipatory

potential of the fluidity of gender discourse and enhanced participation of women in

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online space remains “constrained by the visceral, lived gender relations of the material

world” (Wajcman, 2010: 148) and the more pessimistic view that technologies represent

tools for patriarchal control (Cockburn, 1992). Indeed, the ways in which

communications technologies, and social media in particular, have been used to extend

the harm of sexual violence through further harassing, humiliating, shaming and blaming

victim-survivors itself demonstrates how technologies are not unproblematically

‘liberatory’ for women. As my colleagues and I have argued elsewhere, communications

technologies have been taken up as tools with which to facilitate sexual violence and

harassment against women and girls as well as expressions of gender-based hate speech

in both online and terrestrial space (Henry and Powell, in press 2015).

The various case examples of technology mediated informal justice that I outline in this

article, could likewise be read through the lens of technofeminist theory as forms of

feminist activism and resistance online. Indeed a growing body of feminist scholarship

has theorized online and ‘new media’ activism through Nancy Fraser’s (1990, 2014)

concept of subaltern counterpublic spaces in which culturally and discursively

marginalized or silenced groups engage in resistant and/or critical speech that is

ordinarily delegitimized and excluded from the public sphere. Moreover, criminologists

and non-criminologists alike have identified the capacity and uptake of the ‘new media’,

with its user-generated and networked relationality, as a particularly powerful medium

for facilitating online counter-publics (Salter, 2013) and/or political activism and

resistance (Fileborn, 2014). Here, the use of technology is largely framed as a tool used to

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facilitate the divergent and marginalized discourses of resistive politics to flourish outside

of the public sphere. To return to the case study here of informal responses to rape there

can be little question that communications technologies have facilitated the uptake and

reach of such counter-public engagements. Yet, to quote Elaine Campbell (2014: 160)

writing on post 9/11 security politics in an earlier issue of this journal:

It is one thing to assert that cultural media promote a critical dialogue on the issues of the day, and

thereby constitute an important counterpublic sphere of resistive politics. It is another, however, to

theorize the value, function and meaning of such media within philosophical debates of the kind of

‘justice’ and the kind of ‘just society’ to which we might aspire.

How then, might our conceptualisations of justice itself, be challenged by these online

counter-publics in which informal responses to rape are sought? One of the strengths of

feminist theories of technology, beyond engaging with the complexities of power and

emancipation, has been to further develop concepts of sociotechnical practices

(Wajcman, 2010) or technosociality. In other words, to explore the ways in which

technologies become embedded in our experiences of the social world at the same time as

they contribute to new social and cultural practices (see Levmore and Nussbaum, 2010;

Wajcman, 2010). Drawing on this body of work, I assert that these counter-public

engagements both by, and on behalf of, victim-survivors of sexual violence represent

more than a resistive politics, but the development of new technosocial practices of

informal justice. This argument is contingent on a framing of justice specifically through

the lens of victim-survivors justice needs, as much as it is on an understanding of

22

communication technologies not merely as tools but as mediators of new social practices.

The various uses of communications technologies by victim-survivors and their

advocates described here highlight that victim-survivors have justice needs and/or

interests that are not currently being served by the formal criminal justice system. As I

mentioned at the outset of this article, decades of feminist-inspired law reform in Western

democracies have done little to reduce the attrition of rape cases at each stage of the

criminal justice process. This persistent failure of rape law reform has led some feminist

criminologists and legal scholars to question whether criminal proceedings are capable of

meeting the justice needs of victim-survivors of sexual assault at all (see Daly, 2014;

Herman, 2005; McGlynn et al, 2012; McGlynn, 2011). For example, as Judith Herman

(2005: 574) argues:

The wishes and needs of victims are often diametrically opposed to the requirements of legal

proceedings. Victims need social acknowledgement and support; the court requires them to endure

public challenges to their credibility. Victims needs to establish a sense of power and control over

their lives; the court requires them to submit to a complex set of rules and bureaucratic

procedures…Victims need an opportunity to tell their stories in their own way, in a setting of their

choice; the court requires them to respond to a set of yes-or-no questions that break down any

personal attempt to construct a coherent and meaningful narrative…Victims often fear direct

confrontation with their perpetrators; the court requires a face-to-face confrontation between a

complaining witness and the accused. Indeed, if one set out to intentionally design a system for

provoking symptoms of traumatic stress, it might look very much like a court of law.

23

If we take seriously the notion that justice for many victim-survivors of rape is not only

failed by our formal criminal justice system, but that legal proceedings in their current

form may in fact be ‘diametrically opposed’ to justice, then we are obliged I think to

consider what alternative or innovative justice mechanisms and community-led practices

might offer. Indeed, there is a growing body of scholarly literature outlining the potential

and emerging evidence base for restorative and other ‘innovative’ justice models in

response to sexual violence. Claire McGlynn and colleagues (2012) for example make a

persuasive case, as does Kathleen Daly (2014) and both cite a handful of good-practice

programs from around the world. Though there is not the scope in this article to consider

in detail the debates regarding restorative justice in response rape, Daly’s (2014) piece

identifies five elements of victims’ justice interests that are instructive and particularly

relevant to the discussion here.

Daly (2014) employs the concept of ‘innovative justice’ to refer to a variety of ‘justice

mechanisms’ that may ‘work alongside of or be integrated with criminal justice, be part

of administrative procedures, or operate in civil society’ including ‘activist projects in

civil society’ (Daly, 2014, p. 382, emphasis added). She argues that ‘participation, voice,

validation, vindication, and offender accountability’ (Daly, 2014, p. 387) are each

important in how victims’ themselves conceptualize justice in response to sexual

violence. Indeed, earlier work by Hayley Clark (2010) identifies similar justice needs of

rape victim-survivors including: information, validation, voice and control.

24

To take both Daly’s and Clark’s terms, there is participation, voice, validation, and

vindication through sharing one’s account of victimization with a supportive online

audience who can immediately acknowledge the serious and wrongfulness of the assault

and place it in the context of other known patterns of sexual violence. In the people’s

courts of new and social media it is possible for women victims to be heard and

supported, at least within online counter-publics, in a way not currently offered by formal

criminal justice processes. Bianca Fileborn (2014) presents a related argument in which

she frames the online sharing of women’s experiences of street harassment (through sites

such as Hollaback!) as an informal justice mechanism. While Fileborn’s approach to

informal justice could just as readily be framed as online feminist activism, she

persuasively suggests that sharing of women’s experiences of street harassment online

provide a mechanism for individual voice and validation in the absence of avenues for

formal justice. Certainly there is an overlap between feminist anti-rape activism in online

counterpublics, and technosocial practices of informal justice; but I likewise suggest here

that the two are not simply interchangeable. Voicing personal experiences of rape has

long been a political strategy within feminist activism. Yet to confine understandings of

the nature and impact of victim-survivors voicing their experiences of rape to activism

alone is to seriously underestimate the individual and personal aspects of these ultimately

collective political practices.

In Western liberal democracies we are not perhaps accustomed to applying our concept of

‘justice’ to the informal mechanisms that exist outside of the State and in civil society.

25

Yet this is a failing, and a barrier in many ways, to developing both our understandings of

justice and diversifying the options available to victim-survivors of sexual violence (see

Daly, 2014; Herman, 2005; McGlynn et al, 2012; McGlynn, 2011). Indeed within

criminology and socio-legal scholarship, the very concept of ‘informal justice’ is used

foremost alongside ‘community justice’ to refer to mediation and dispute resolution or

restorative mechanisms, which, while not always operating with the same authority as the

criminal or civil law, nonetheless take place within regulatory and often state-funded

structures. The concept is however used in international development, post-colonial

and/or post-conflict contexts, to refer to traditional or tribal community justice

mechanisms that existed and/or continue to exist outside of an imposed or newly formed

State structure, or indeed transitional justice (see for example, Eriksson, 2009; Buss et al,

2014). Vigilantism, is perhaps the most familiar term in public commentary, though has

rarely been treated seriously within criminology (notable exceptions include Evans 2003;

Girling et al 1998; Johnston 1996). Yet ‘vigilantism’ doesn’t fully capture the nature of

activity described here, in which for the most part there is no focused action against

accused perpetrators, but rather the intention appears to be directed foremost on voicing

personal narratives of sexual violence to be acknowledged by a trusted audience. If we

take the concept of informal justice to refer more particularly to justice practices outside

of the state then there is a comparative underdevelopment within theoretical criminology

regarding the nature and mechanisms of such practices in Western liberal democratic

societies.

26

To be clear, I am not in this article advocating for the abandonment of feminist projects

of law and criminal justice reform, nor for their replacement with alternative justice

mechanisms whether ‘restorative’, ‘innovative’ or ‘informal’. That successive waves of

rape law reform have thus far failed to meet the justice needs of the vast majority of

victim-survivors of sexual violence is not in of itself reason to turn one’s back on formal

and criminal justice. Yet feminist criminology is increasingly advocating for a variety of

justice mechanisms to be made available for victim-survivors of rape, on the basis that

‘conviction’ is a very narrow concept of justice and one that is not necessarily central to

how victim-survivors themselves conceptualise their justice needs. Nonetheless there is a

danger that in theorising the technosocial practices described here as ‘informal justice’,

one minimises the seriousness and impacts of sexual violence (Fileborn, 2014) and

downplays the responsibility of the State to take action. Furthermore, there are key

victim-survivor justice needs, such as offender accountability and control, which are not

necessarily addressed in online counter-publics. There is, rather, an inherent loss of

control of one’s narrative of victimisation as soon as it is shared online, and even if an

alleged perpetrator is ‘named and shamed’ (which, as I’ve suggested, appears less

common than anonymous or de-identified accounts), this is hardly tantamount to the

taking of responsibility that accountability implies. Finally, when alleged perpetrators

have been named online (such as in the case of Stuebenville referred to earlier), it does

not follow that they are shamed; with many in social media communities instead rallying

their support for those accused and engaging in victim-blaming and direct harassment of

victim-survivors.

27

What then is to be gained by extending a feminist reading of emerging technosocial

practices responding to rape as mechanisms of informal justice? Despite the challenges

identified here, framing these practices as informal justice fundamentally recognises and

further validates the justice needs identified by victim-survivors themselves, and their

agency in seeking justice whether inside or outside of the State. Second, comparing the

justice needs met by these technosocial informal justice mechanisms with those met by

formal law and criminal justice responses highlights the continued failings of formal

justice and by implication the continued need for reform. Third, acknowledging existing

practices of informal justice operating in civil society as ‘justice’ (albeit at the informal

end of a continuum of justice mechanisms) and not only ‘activism’ lends further weight

to arguments in support of extending justice options for victim-survivors of sexual

violence; such as restorative approaches, tribunals and other civil society forums

including public hearings and truth-telling inquiries. Finally, and perhaps of broader

relevance within criminology, to take seriously the uptake of communications

technologies for informal justice across diverse online spaces and spanning the

boundaries of Western democracies, is to fundamentally displace geo-spatial and

conceptual divisions between the formal justice of the ‘successful’ West and the informal,

community or traditional justice of emerging, post-conflict, or ‘failed’ States. In other

words, reflecting on emerging technosocial practices of informal justice, may serve to

challenge our anglo-centric framing of justice and social movements (see Carrington,

2014), and thus open-up greater possibilities for innovative justice mechanisms both in

28

theory and practice.

Conclusion

If, as Daly (2014) and others (Clark, 2010, Fileborn, 2014) suggest, ‘justice’ for victim-

survivors of sexual violence means information, participation, voice, validation,

vindication, control and offender accountability, then arguably we can anticipate social

media, blogs and other online communications increasingly mediating informal justice

for rape. Certainly such engagement is not unproblematic and nor is it without risks,

particularly for victim-survivors themselves. The potential for injustice, through violation

of due process rights of accused persons’ is also real and requires a considered response.

The nature of communications technologies, in particular new and social media, means

that there is not precise control over which audiences will be reached, or how they in turn

will engage with content. Nonetheless, the technosocial practices of responding to sexual

violence described in this article can productively be understood as mechanisms of

justice, albeit informal, for victim-survivors of rape. Indeed, communications

technologies and new media are arguably not simply ‘new’ tools for ‘conventional’

justice. Rather, these technologies are facilitating new meanings and practices of

informal justice in technosocial subaltern counterpublics. While the case studies here

have explored informal justice through a feminist analysis of responding to sexual

assault, there is further work needed within theoretical criminology to fully account for

and understand the potential and societal impact of such technosocial practices of both

formal and informal, or civil society, justice.

29

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